The Most Important Election This Year
A Wisconsin Supreme Court Race Will Have a Huge 2024 Impact
Off year elections leading into the Presidential Primary Season are usually pretty slow. Major races are few and most election contests are special elections to fill vacancies. The start of the Presidential race always sucks up all the oxygen (and money) and other races often fail to go noticed. Races tend to be state/local oriented and never too exciting.
Two states—Wisconsin and Pennsylvania—are holding state supreme court elections in 2023. Justice Patience Roggensack's seat on the Wisconsin Supreme Court and Justice Max Baer's seat on the Pennsylvania Supreme Court are on the ballot.
However, it is the one in Wisconsin where a State Supreme Court race can play a major factor in the Badger State and across the country for 2024. Early voting in the primary for this election began this week, and after narrowing down to two candidates, the general election for the seat will occur in April. While the position is supposed to be non-partisan, both Democrats and Republicans have their favored candidates and if the past is any guide, this race is expected to be a nailbiter to the end. Conservatives currently own a 4-3 majority on the bench, but that could all change come April.
At stake is control of the Wisconsin Supreme Court itself, but the ramifications are much broader than that. Wisconsin is one of the most politically competitive states in the country, and every Presidential race is always tight. It was the tipping point state for both Trump in 2016 and Biden in 2020, so a rematch would likely be strongly contested by both. Millions have already begun pouring into this Supreme Court race from outside interests because of the consequences a Republican or Democratic majority can have on the state.
But to really understand the implications of this race, you have to go back to 2010.
The Tea Party wave, Act 10 and Gerrymandering
It seldom gets discussed, but for as much as people love President Barack Obama, his first two years in office are responsible for a wipeout of Dems at the state legislative level across the country that we are still dealing with today. Why? Because 2011 was a redistricting year in states across the country, and the people who drew the maps were those elected in 2010, the Tea Party Wave year.
Newly elected Governor Scott Walker took an aggressive approach towards governance. He enacted Act 10 which gutted public sector unions, a primary source of money and organization for Democrats. That led to him and six Republican legislators facing recall elections across the state, Democrats won two and swung the State Senate (Walker easily won his recall election). However, before the recalls, the state assembly and legislature passed one of the most restrictive gerrymanders in the nation. Even with Dems in control of the Senate after the recall, they were powerless to change it. Following the gerrymander, Republicans won back the seats in 2012 to even larger numbers.
How strong was the gerrymander (which still exists)? In 2020, Democratic candidates for State Assembly won a majority of the statewide vote total, but Republicans maintained a whopping 64% of the Assembly seats. The gerrymander has been argued in both the State Supreme Court and the U.S. Supreme Court, and in both cases Conservative majorities refused to do anything about it.
The gerrymander is not only difficult to undo, it makes it impossible to govern. After losing election, Scott Walker and the GOP legislatively stripped the governorship of power and delegated more to the legislature, which they would still control. Governor Evers has been essentially governing a state with his hands tied.
The WI Supreme Court
Over the past two years and in the upcoming term, some major decisions have been/ will be determined. When Trump lost the state in 2020, he appealed to the WI Supreme Court which refused to hear it but may not next time. The Court has been assertive against Gov. Evers, striking down his ability to make cabinet appointments and shooting down a mask mandate during COVID. In the last election cycle, the Court upheld voter ID, bans on drop boxes, and have sided with Republicans on numerous election related matters.
However, it was the Dobbs decision that may have really kicked things into high gear. With the U.S. Supreme Court striking down Roe v. Wade, the law in Wisconsin reverted back to an 1849(!) abortion ban on the books. With a conservative legislature unwilling to address the issue, it seems likely that legal contests to the WI Supreme Court will ultimately decide the legality of the ban in the state.
With the majority of the WI Supreme Court hanging by a string, and the elections in 2024 coming up next year, the Court is perfectly situated to play an outsize role in next year’s Presidential election and on many of the issues that will impact it.
The Candidates
There are two Republicans and two Democrats running for the seat. The top two vote getters advance to the general election (which means that two republicans or two democrats can advance to face each other, but that seems unlikely). On the liberal side, Janet Protasiewicz, a Milwaukee county circuit court judge, and Everett Mitchell, a Dane county judge. For conservatives, Dan Kelly, a former supreme court justice who lost his seat in 2020 and Jennifer Dorow, a judge who oversaw a high-profile trial of a man convicted of killing six people at a Waukesha Christmas parade, are running.
“If in fact a justice who is more in the progressive left tradition succeeds here, then the nature of the court will change, we’ll see different decisions than we’ve tended to see in the recent past. If a justice who is more sort of conservative originalist is elected then we won’t see a change,” said Richard Esenberg, who has argued before the court as the president and general counsel of the conservative Wisconsin Institute for Law and Liberty. “That can affect some very significant issues.”1
Supreme court justices are elected to 10-year terms in Wisconsin in what are technically non-partisan contests. But the races have taken a hard partisan edge as the court’s influence has grown.2 State breakdowns of the vote tend to closely reflect the partisan splits of major statewide races.
The Nightmare Scenario
In conclusion, I just want to leave you with a thought on 2024. Imagine a Trump-Biden rematch where the rest of the nation is split and Wisconsin is the deciding state, much like Florida was in 2000. Imagine in this scenario all the issues decided before the election that would play a role in it (voter ID, registrations, drop boxes, etc.) Imagine it even gets contested after a narrow result— each side has legitimate arguments to be made before the WI Supreme Court on the validity of various ballots and election practices. Now imagine the difference in results if the Court was 4-3 Conservative or 4-3 Liberal.
That’s how important this race will be.
PurpleAmerica’s Recommended Stories
I drew a lot from this Guardian article which does a good job of laying out the ramifications.
https://www.theguardian.com/us-news/2023/feb/13/wisconsin-supreme-court-election-gerrymandered-democracy
I also want to call attention to a small civic group in Wisconsin, As Goes Wisconsin. Started by Kristen Brey, she’s done an excellent job in giving information on a wide array of Wisconsin state civic issues, from the census to the state and local elections that are often overlooked. She’s managed to parlay that into a radio show/ webcam/podcast that if you want to follow Wisconsin politics should not be missed.
Look up her site on Facebook, Instagram and Twitter.
PurpleAmerica’s Obscure Fact of the Day
Thirty-eight states hold elections to select state supreme court justices, using either partisan elections, nonpartisan elections, or retention elections. In the other 12 states, justices are appointed by governors or state legislature.
Incumbents tend to do better in elections for any office than newcomers facing incumbents. This is no less true in state supreme court elections. Across all types of state supreme court elections, incumbent justices running for re-election won 94% of the time from 2008-2022. No more than six incumbent justices lost in a single year during this time frame. 2008 was the year with the lowest incumbent win rate at 89%.
Heading into the 2023 elections, Democrats held majorities on 16 courts, Republicans held majorities on 27, and the remaining nine courts’ majorities were either split between parties or unclear. (Texas and Oklahoma both have two courts of last resort.)
PurpleAmerica Cultural Criticism Corner
Elections are not particularly the best way to hire judges. Judges are supposed to be impartial and immune from political pressure. Yet in most states across the country, most justices at the appellate level or higher are determined by elections.
One of the best representations of the dynamic I’ve seen is actually a John Grisham novel, “The Appeal.”
Its the story of how a chemical company receives an adverse ruling in a Mississippi court, and knowing that it will be appealed, decides to weigh in and dump millions on favorable candidates in judicial elections for the state supreme court. To me, its one of Grisham’s best at demonstrating a serious legal issue.
Footnotes and Parting Thoughts
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The Guardian, “Stakes are Monstrous: Wisconsin Judicial Race is 2023’s Key Election, Feb 13, 2023.
Ibid.